foreign country after the coercion has been withdrawn, and after his power of choice has been restored, he may acquire a domicil therein.1

§ 23. Suppose the government of the country of residence Effect of municipal prohibits a foreigner from acquiring a domicil. It has been laws on decided in France that a de facto domicil may be acquired, domicil notwithstanding such prohibition, even with respect to the country of residence. This is placed on the ground that, although not entitled to the privileges of a domiciled subject, he may incur the liabilities. Again, suppose the government of a country forbade its subjects to establish a domicil out of their native land, may they not acquire a de facto foreign domicil? Undoubtedly they may, so far as respects their national character in war, and Phillimore is of opinion that the personal property of such subjects who have established. a de facto domicil in a foreign country, must be distributed according to the law of the de facto domicil. He, however, admits that the case would be open to some argument on the other side.2

§ 24. Treaties sometimes have the effect of preserving to of treathe resident in a foreign country his original domicil, or of ties giving to him a commercial domicil, neither of the country of his origin nor that of his residence. Such has been the general effect of the treaties and commercial intercourse between Christian and Mohammedan States. In the Turkish dominions the control over and disposal of their property, its exemption from municipal laws, and other privileges, have been secured to Christians by treaty stipulations. In such cases, the domicil of their own countries is considered as preserved to foreign residents in the East, the ordinary rules of the international law of domicil not being applicable to such residence. In general, European and American merchants residing in the East under the protection of trading factories, are considered as retaining the national character of the factory to which they belong. This distinction results from the nature and habits of the East, foreigners not being permitted to mix freely with the native inhabitants, or to become incorporated into the mass of society They, therefore, always continue to be strangers and mere

1

1 Justinian, Dig. 1. t. i. 1. xxiii.; Westlake, Private Int. Law, §§ 52, 53. Phillimore, Law of Domicil, §§ 301-306.

Temporary residence

A mer

chant

several

domicils

sojourners, no matter what may be the circumstances, or length of time, of their residence. As they cannot acquire the national character of the country where they reside, the law very properly considers them to have retained that of the country to which they belong. But this doctrine does not apply to Christian countries. An attempt was at one time made to extend it to British merchants residing in Portugal, with special privileges which distinguished them from the native inhabitants, and from all foreigners of other countries; but the courts held, that the law of domicil of Europeans residing in the East was wholly inapplicable to such cases.'

§ 25. If a neutral merchant go into an enemy's country during the war merely to collect his debts, or to withdraw the property which he may have there, his temporary residence, for that purpose alone, will not confer upon him a hostile character, and the property and funds thus sought to be withdrawn will not be subject to confiscation. But he must bring himself clearly within the rule, for, if instead of confining himself to the legitimate object of his visit, he engages in a trade purely national, his character with respect to such trade is regarded as hostile, and the property embarked in it, if captured, is condemned. It is contended by some that a neutral merchant residing in the enemy's country at the commencement of the war, should have the same privilege of withdrawing his property, and that, for a reasonable time, it should be exempt from capture. But this doctrine has not been established by the positive adjudication of any court of prize.2

§ 26. The active spirit of commerce and enterprise in the may have present day, and the increased facilities for travel afforded by steam navigation and railroads, are well calculated to perplex the mind of a court in assigning accurately a merchant's national character, at different periods of a divided transaction. Thus, if he have charge of a complex mercantile business, he may be found, at no great intervals of time, in a variety of local situations, without any permanent residence in any one place. It is, therefore, held, that a merchant carrying on commerce in different countries, in time of war, has the national character of each, in his respective trades. This agrees with

1 The 'Indian Chief,' 3 Rob., 29; the 'Twee Frienden,' &c., 3 Rob., 29;. Ruding v. Smith, 2 Hagg. R., 386; Moore v. Darell and Budd, 3 Hagg. R., 350; Maltass v. Maltass, 3 Rob., 81.

See post., vol. ii. ch. xxiii. § 6.

the maxim of the Roman law, that when a man has so set up his household goods in two different places as to be equally established in both, both are to be regarded as his domicil. It, however, was remarked by Domat (and this opinion was adopted by other jurists) that although a man may have two or more domicils for particular purposes, yet it would be very difficult, if not impossible, for him to have two which should be equally the centre of his affairs. Hence municipal law, both in Europe and America, requires the characteristics of a principal domicil for cases of a testament, or a distribution under intestacy, while it permits the same person, at the same time, to have other domicils for certain purposes, and with respect to particular rights and property.'

character

§ 27. The native national character, lost, or suspended by Native a foreign domicil, easily reverts. The adventitious character easily imposed by domicil ceases with the residence from which it reverts arose. An actual return to his native country is not always necessary, nor even an actual departure from the country of

1 Domat, Traité des Lois, liv. i. tit. xvi. § 6; Merlin, Répertoire, tit. viii. Domicile,' § 7.

2 In 1863 a Mr. Scott applied to the British Consul at New York for protection. He had declared his intention to become a citizen of the United States at the time of the Trent affair, and if war had broken out it was his intention to adhere to the United States, against his own sovereign. The British Government refused to interfere. In 1863 Mr. Hamilton, an Irish gentleman, who had been naturalised in the United States, and who had returned to Ireland, being about to go back to the United States, requested to know whether he could resume his British nationality previously to doing so, and was told that the British Government could not promise to afford him protection against any obligations which the laws of the United States might impose upon persons who had been naturalised in that country. In 1862 the British Government decided that a natural-born British subject, who had been naturalised in the United States, would not be recognised by the British Government within the United States as a British subject, but if he returned to British territory his native allegiance would revert. In the event of the independence of the Confederate States being established, the British Government would not have interfered on behalf of such naturalised Americans, and their status would have been left to be determined by the Government of those States. Naturalised citizens would have had a right to claim from the United States to be treated, with regard to a transfer of allegiance, in the same manner as native citizens. Until, however, the independence of the Confederate States was recognised, the United States were justified in enforcing against all persons resident therein, the obligations of the oath of allegiance which they had taken. If the Confederate States had become independent, the British Government was not bound, nor were the Confederate States, to recognise such persons as British subjects, nor would their return to Great Britain and renunciation there of their United States' allegiance have made any difference in this respect. Parl. Papers, N. Amer., 1861-62.)

his domicil, if he has actually put himself in motion bona fide to quit the country sine animo revertendi. But the commencement of the journey to return to his native country, although it may restore to the party his native national character, will not exempt his property from the hostile character acquired by residence, only in cases where such property has been engaged in a trade completely lawful in the native character. The principle can never be extended to protect a trade which is illegal in a native subject or citizen. Thus, an American citizen, domiciled in England previous to the war between the two countries, shipped goods from that country a long time after the commencement of the war, and accompanied the shipment in person, with the intention of abandoning his English domicil, and resuming his American character. But his property was captured and condemned by an American prize court, on the ground that whether an English subject, or an American citizen his property was liable to confiscation— if the former, as that of an enemy; and if the latter, as that of a citizen unlawfully trading with an enemy. The mere return of a party, whether a belligerent subject or a neutral, to his native country, is not sufficient, of itself, to restore his native character. If he merely returns for a visit, or temporary purpose, and designs to resume his former residence, the character impressed on him by his foreign domicil remains unchanged. In other words, his domicil, once established, is not broken by a temporary change of residence, and his property on the ocean, although shipped or captured during his absence, remains liable to confiscation.

Leaving § 28. In the application of the general rule that the native and recharacter of the party must be taken from that of the country turning to native where he resides, there is a material difference between recountry moving from, and returning to, one's native country. Although the native character remains till a new domicil is acquired by actual residence or settlement in a foreign country, the adventitious character resulting from domicil ceases with the residence from which it arose. But, according to the decisions of the courts of the United States, it is not sufficient to prove the mere intention of the party to return to his native country for the purpose of remaining there permanently; he must have actually commenced to return. The British courts, however, have, in some cases, considered other overt acts, when

performed in good faith, as sufficient to restore the native national character.

of a belli

war

§ 29. It seems to be a well-settled principle of inter- Subjects national law that, during the existence of hostilities (flagrante gerent bello), no subject of a belligerent can transfer his allegiance during or acquire a foreign domicil by emigration from his own country, so as to protect his trade either against the belligerent claims of his own country, or against those of a hostile power. In other words, his allegiance continues the same, and his native character is unaffected by his change of residence. This doctrine rests on the ground that to desert one's own country in time of war, is an act of criminality, and that if a citizen removed to another State, his allegiance is still due to his sovereign, and he is as much bound to abstain from trade with a public enemy as if he had remained at home; and his property, as that of an enemy, continues to be just as liable to seizure and confiscation, by an opposite belligerent. This principle is sanctioned by the most approved writers on international law, and has been expressly affirmed by the courts of the United States. The doctrine above announced is not in conflict with that contended for by some writers, that a citizen has a general right of expatriation in time of peace, and that the assent of his government to seek change of allegiance and national character is implied in the absence of any prohibition. Nor is it to be construed as denying to a citizen the right to change his allegiance and national character in time of war, with the express consent of the State, and with authentic renunciation of pre-existing citizenship. But expatriation, in time of war, does not result from a change of residence, and the general consent of the State to emigration, which is presumed, in time of peace, from the absence of any general prohibition. If so, it might be appealed to as a mask to cover desertion, or treasonable aid to the public enemy.1

military

§ 30. Mere military occupation of a territory by the forces Effect of of a belligerent (without confirmation of conquest by one of occupathe modes recognised in international law), does not, in gene- tion

1 The 'Dos Hermanos,' 2 Wheat. R., 98; Talbot v. Janson, 3 Dallas R., 162; the Santissima Trinidad,' 7 Wheat. R., 284; Duguet v. Rhinelander, 1 Johns. Cas., 360; Jackson v. N. Y. Ins. Co., 2 Johns. Cas., 191; United States v. Williams, 2 Cranch. R., 82, note; Murray v. the 'Charming Betsy,' 2 Cranch. R., 64.